HARYANA URBAN DEVELOPMENT AUTHORITY,PANCHKULA, HARYANA vs. PRINCIPAL COMMISSIONER OF INCOME TAX, PANCHKULA , HARYANA

That the PCIT has erred in law & facts of the case in passing order u/s 263 of the Income Tax Act holding that the assessment order dated 26.12.2022 is erroneous and prejudicial to the interest of revenue which is highly unjustified, uncalled for and needs to be set aside.

That the PCIT has erred in law & facts of the case in invoking the powers u/s 263 and passing the order directing the Assessing Officer to pass the assessment order afresh which is bad in law and uncalled for.

That the appellant craves the leave to add, amend or modify any ground of appeal on or before the disposal of the same.

The assessee claimed a deduction of Rs.4,23,71,541/- towards Sales Tax/VAT liability, which included a significant component of interest on delayed payment. The Ld. PCIT invoked juri iction u/s 263 on the ground that the AO failed to verify the nature of these payments, specifically whether they were capital in nature (being on materials for capital projects) or penal in nature.

The Ld. Counsel for the assessee argued that the interest paid on VAT is purely compensatory in nature and thus allowable as business expenditure u/s 37(1) and u/s 43B in the year of payment. The Counsel relied on the decision of the Hon'ble Supreme Court in Mahalakshmi Sugar Mills Co. v. CIT [1980] 123 ITR 429 (SC), wherein it was held that interest on arrears of cess is compensatory and allowable.

1 Further Ld. AR submitted that the assessee follows a cash basis of accounting and that the amount of Rs.4,23,71,541/- was paid during the year to discharge the VAT liability for AY 2014-15. The assessee claimed that this deduction is allowable u/s 43B of the Act in the year of actual payment. The assessee relied on the ITAT's order in its own case for AYS 2012-13 to 2014-15, where similar additions were deleted. The assessee argued that since the AO followed a view permissible in law and supported by the ITAT's order, the assessment order could not be termed erroneous.

2 The Id. AR has drawn our attention to page 2 of the Paper Book, whereby the Id. PCIT had issued the Show Cause Notice on 10.03.2025, and it was alleged as under :

From perusal of assessment record for AY 2021-22, it is observed that Sales Tax/VAT liability amounting to Rs.4,23,71,541/- was claimed by you which is not an allowable deduction under the provisions of Income Tax Act, 1961 as you have imposed sales tax/service tax on cost of supply of material against cost to contractors which must be relating to both the completed and the uncompleted sectors. Therefore, the same was required to be disallowed u/s 37 of the Act being a capital expenditure. The AO has failed to disallow the same vide assessment order dated 26.12.2022. This omission has resulted in under assessment of income of Rs.4,23,71,541/-.

3 The assessee, after receiving the Show Cause Notice, has submitted a detailed reply to the Id. PCIT has submitted that during the scrutiny assessment, the AO raised specific queries regarding VAT liability vide notices dated 21.09.2022 and 28.10.2022. The assessee has duly replied to the AO vide its reply dated 12.11.2022 and 24.11.2022. After considering the reply, the AO has not made any addition with respect to the VAT liability. It was submitted that the Tribunal, in the case of the assessee for the earlier years and subsequent years also had examined the identical issue and had allowed the claim of the assessee with respect to VAT. The Id. AR has drawn our attention to page 132 of the Paper Book and paragraph No. 157 and 158 of the order of the Tribunal in the case of the assessee in ITA No. 623, 624, 625, 1061, 516, 544/CHD/2011,15 & 17 for the assessment year 2004-05, 2006-07 to 2011-12 and 2014-15. It was submitted that the Id. PCIT, by issuing a Show Cause Notice for the assessment year 2021-22, is, in fact, trying to substitute his views on the AO. It was submitted that the AO's view, allowing the VAT, is a plausible one, hence no proceeding under section 263 can take place.

4 The Id. AR had further submitted that the AO, in the notice dated 20.09.2022, has asked the assessee to split the tax expenses to the extent of Rs.4,35,36,478/-. The assessee had given the reply and at page 28, the assessee had mentioned as under : S.NO Particulars Amount

5 The AO again called for the reply from the assessee vide letter dated 28.10.2022 and at page 39, it was asked as under :

6 In respect of the expense 'Payment of Taxes' under the head 'other administrative expenses' amounting to Rs.4,35,36,478/-, please furnish the following details. Please provide a detailed split up of the above expense. The assessee has given the detail of expenses of amount at page 47 as under : The detail of tax expense amounting to Rs.4,35,36,478/- is as under:- S.NO Particulars Amount

7 The Id. AR had submitted that the assessing authority of VAT Department adjudicated the VAT tax demand of the assessee on 15.03.2018 and the bifurcation of the demand is as under: TAX Paid 1102647 Interest u/s 14(6) 23724428 Due 23724428 17544466 42371541

Feeling aggrieved by the demand raised by the assessing authority, Panchkula (VAT), the assessee preferred the appeal before the Joint Excise & Taxation Commissioner, Ambala and the said appellate authority had adjudicated the claim of the assessee on 13.11.2019 and decided the issue against the assessee. It was submitted by the Id. AR that all these documents and submissions were before the AO and the AO has applied his mind to the questions and have decided the issue in favour of the assessee. It was submitted that by invoking the powers u/s 263, the Id. Pr. Commissioner of Income Tax sought to substitute his opinion of the AO which is one of the possible view with his view and the same is not sustainable. It was further submitted that the Hon'ble Gujrat High Court in the case of Shri Digvijay Cement Co. Ltd. Vs CIT 289 ITR 0250, after relying upon the decision of the Hon'ble Supreme Court in Mahalakshmi Sugar Mills Vo. V CIT 123 ITR 429, in paragraph 6 to 10 has decided the issue as under :

At the outset, it is required to be noted that the assessee claimed deduction of Rs.7,38,11,883 under Section 43B of the Act on account of interest at the rate of 24 per cent per annum under section 47(4A) of the Gujarat sales Tax Acton the outstandingsales Tax amount An identical question came to be considered by the Hon'ble Supreme Court in the case of Mahalakshmi Sugar Mills Co. (1980) 123 ITR 429 (3"Q, where, considering the provisions of the U.P. Sugarcane sales Act, 1956, the Hon'ble Supreme Court held that interest provided under section 3(3) of the said Act was in the nature compensation paid to the governmentfor delay in payment of sales Tax and itwas not by way of penalty and the interest payable on arrears of cess under section 3(3) is part and parcel of the liabilityto pay cess. Now, applying the said analogy, the amount of interest due on the outstanding amount of sales Tax becomes part of the sales Tax and will be covered in the word 'tax', and thus interest payable on arrears of sales Tax is in reality part and parcel of liabilityof the sales tax, and therefore the same cannot be allowed as deduction unless it is actually paid as the same is hit by the provisions of section 43B of the said Act. It is also required to be noted at this stage that, even the aforesaid amount of Rs.7,38,11,883 is disallowed by the assessing officer while passing the assessment order under section 143(3) of the Act, and it appears that the same has been accepted by the assessee also. Therefore, as such there is no dispute on the merits whether the amount of Rs.7,38,11,883 warranted deduction under Section 43B of the Act or not. However, the only question which is required to be considered is whether the assessing officer was justified in invoing the provisions of section 143(1)(a) of the Act.

It is the contention on behalf of the assessee that the issue was a debatable one more particularly in view of the fact that in the immediate preceding year the assessing officer himself accepted the rectification application on the similar ground and deleted the adjustments, and the issue, that the amount of interest of Rs.7,38,11,883 on the arrears of sales Tax was disallowable under section 43B of the Act on the ground of its non-payment or not, was a debatable issue, and once it is a debatable question, that goes out of the ambit of section 143(1)(a) of the Act. Therefore, the question which is now required to be considered by this court is whether in the assessment year 1992-93, when the assessing officer invoked the provisions of section 143(1)(a) of the Act and passed the order adjusting prima facie and adding Rs.7,38,11,883 being interest on outstanding sales Tax calculated at 24 per cent, per annum, but not paid, and disallowed the same under section 43B of the Act, the said question was a debatable question or not, and whether the assessing officer was justified in adjusting, prima facie, and adding the aforesaid amount or not.

Section 143(1)(a) of the Act reads as under : '143. Assessment^ 1) (a) Where a return has been made under section 139, or in response to a notice under sub-section (1) of section 142, (i) if any Tax or interest is found due on the basis of such return, after adjustment of any Tax deducted at source, any advance Tax paid and any amount paid otherwise by way of Tax or interest, then, without prejudice to the provision of sub-section (2), an initiation shall be sent to the assessee specifying the sum so payable, and such intiation shall be deemed to be a notice of demand issued under section 156 and all the provisions of this Act shall apply accordingly; and (ii) if any refund is due on the basis of such return, it shall be granted to the assessee: Provided that in computing the Tax or interest payable by, or refundable to, the assessee, the following adjustments shall be made in the income or loss declared in the return, namely: (i) any arithmetical errors in the return, accounts or documents accompanying it shall be rectified; (ii) any loss carried forward, deduction, allowance or relief, which, on the basis of the information available in such return, accounts or documents, in prima facie admissible but which is not claimed in the return, shall be allowed; (iii) any loss carried forward, deduction, allowance or relief claimed in the return, which, on the basis of the information available in such return, accounts or documents, is prima facie inadmissible, shall be disallowed.

Section 143(1) (a) of the Act provides that, where a return has been made under section 139, or in response to a notice under sub-section (1) of section 142, if any Tax or interest is found due on the basis of such return, after adjustment of any Tax deducted at source, any advance Tax paid and any amount paid otherwise by way of Tax or interest, then, without prejudice to the provisions of sub-section (2), an intimation shall be sent to the assessee specifying the sum so payable, and such intimation shall be deemed to be a notice of demand issued under section 156. As per the proviso to section 143(1)(a), in computing the Tax or interest payable by, or refundable to the assessee, any arithmetical errors in the return, accounts or documents accompanying it shall be rectified or any loss carried forward, deduction or relief, which, on the basis of the informationavailable to such return, accounts or documents is prima facie admissible but which is not claimed in the return, shall be allowed by making adjustments. As per the said proviso, any loss carried forward, deduction, allowance, or relief claimed in the return, which, on the basis of the information available in such return, accounts or documents, is prima facieinadmissible, shall also be disallowed while making the adjustments. It is the contention on behalf of the assessee that, in view of the earlier order passed by the assessing officer in the preceding

Now, as stated hereinabove, at the time when the assessee submitted the return of income for the assessment year 1992-93 declaring 'Nil' income and not including the amount of Rs.7,38,11,883 in the total income, the decision of the Hon'ble Supreme Court in the case of Mahalakshmi Sugar Mills Co. (1980) 123 ITR 429 (SC) was in force as the said judgment was delivered in 1980. Not only that, but when the assessing officer accepted the rectification application submitted by the assessee for the assessment year 1991-92 deleting the amount of Rs.4,83,10,445 being the amount of interest on arrears of sales tax, the assessing officer committed a mistake in allowing the said application under section 154 and deleting the aforesaid amount, as on that day also the decision of the Hon'ble Supreme Court in the case of Mahalakshmi Sugar Mills Co. (1980) 123 ITR 429 (SC)was in force. Still, for whatever be the reason, the assessing officer granted the benefit of section 43B and granted the deduction and not included the amountof interest on unpaid sales Tax treating it not to be part of the. tax, In any case, so far as the assessment year 1992-93 is concerned, in view of the decision of the Hon'ble Supreme Court in the case of Mahalakshmi Sugar Mills Co. (1980) 123 ITR 429 (SC), the law on the point was very clear and it was specifically held.by the hon'ble Supreme-Court that the amount of interest on arrears of cess is a part of the cess and therefore section 43 B of the Act would be applicable and the said amount is not to be deducted unless it is actually paid. Therefore, the question, whether the amount of interest on unpaid sales Tax being part of the Tax was to be considered and that the provisions of section 43B of the said Act, would be applicable, did no remain a debatable question/issue, in view of the law laid down by the Hon'ble Supreme Court. Not only that thesame Was not a debatable question, but in view of the law laid down by the Hon'ble Supreme Court, no two views were possible. Under the circumstances, the assessing officer was justified in invoking the provisions of section 143(1)(a) for including the aforesaid amount of Rs.7,38,11,883 towards interest on unpaid sales Tax in the income and disallowing the deduction by holding that it was prima facie inadmissible. Merely because in the preceding year the assessing officer had, by mistake and/or for any reason, wrongly allowed the deduction, the question, which was already settled by the Supreme Court, will not become a debatable one. As rightly observed by the Commissioner (Appeals) and theTribunal, the Assessing Officer was not required to repeat the or wrong, and/or perpetuate the illegality committed. On the contrary, the assessing is justified in disallowing the deduction of the aforesaid amount and treating it as inadmissible and has rightly disallowed the same by following the decision of the Hon'ble Supreme Court in the case of Mahalakshmi Sugar Mills Co. (1980) 123 1TR 429(SC). It is not in dispute that the law declared by the Hon'ble Supreme Court is binding on all under article 141 of Ac Constitution of India. The assessee was supposed to know the law, and it is not even the case of theassessee that the assessee was not aware of the correct law. However, the assessee is simply relying upon the order passed by the assessing officer for the immediate preceding year andaccordingly he has tried to submit that the issue was a debatable issue. However, as stated above, even if the assessing officer granted the benefit in the preceding year, in breach of the clear decisionof the Hon'ble Supreme Court, it cannot be said that the issue remained debatable. Under thecircumstances, the contention on behalf of the assessee, that the assessing officer has committed an error in adjusting the aforesaid amount of interest o n unpaid sales-Tax and disallowing deduction by invoking the provision under section 143(1)(a) of the Act, cannot be accepted. Once the provisions of section 143(1)(a) of the Act are invoked and certain amount is held to be prima facie inadmissible, and is disallowed, and is included as income on adjustment, necessary consequences of payment of an additional income-Tax calculated at the rate of 20 per cent, of the Tax payable on such excess amount must follow as required under section 143(1 A) (a) (i) of the Act and the assessing officer shall further increase the amount of Tax payable under sub-section (1) after additional income-Tax is calculated at the rate of 20 per cent, of the Tax payable on such excess amount and he is required to specify the additional income-Tax in the intimation to be sent under sub-clause (i) of clause (a) of sub-section (1) of section 143 of the Act. Under the circumstances, neither the assessing officer, nor the Commissioner (Appeals), nor the Income Tax Appellate Tribunal, has committed any error in holding that the provisions of section 143(1)(a) would be attracted; that there was no debatable question; and that the assessing officer was also justified in holding that it was prima facie inadmissible.

For the foregoing reasons, the question is answered against the interests of the assessee and in favour of the revenue. The reference shall stand disposed of accordingly. No costs.

1 Further, it was submitted that the VAT Act, as applicable to the State of Haryana, is pari-materia similar to the VAT Act of Gujarat and for the abovesaid purposes, the Id. AR has drawn our attention to page 43 Clause (14)(6) which is to the following effect, and also the Gujrat VAT Act and our attention was drawn to page 45 Clause (4A) which is to the following effect : "(4A) (a) Where a dealer does not pay the amount of tax within the time prescribed for its payment under sub-section (1), (2) or (3), then there shall be paid by such dealer for the period commencing on the date of expiry of the aforesaid prescribed time and ending on date of payment of the amount of tax, simple interest at the rate of twenty-four per cent per annum on the amount of tax not so paid or on any less amount thereof remaining unpaid during such period."

2 It was submitted by the Id. AR that Hon'ble Gujrat High Court, based on the decision of the Hon'ble Supreme Court had decided that the interest paid on the VAT taxes would partake the character of the taxes and therefore, is an allowable expenditure.

Per contra, the Ld. DR vehemently opposed the appeal and defended the order of the PCIT. The Ld. DR drew our attention to the specific provisions of the Haryana Value Added Tax Act, governing the levy of interest. It was submitted that the Act provides for a tiered interest structure: Initial Period: Interest is levied @ 1.5% per month for the initial 3 months of default. Subsequent Period: Thereafter, the rate escalates to 3% per month (effectively 36% per annum).

The Ld. DR contended that while the initial 1.5% might be viewed as compensatory, the escalation to 3% is clearly penal in nature. The steep hike is intended to deter continued default, thereby bringing it within the ambit of the Explanation to Section 37(1), which disallows expenditure incurred for any purpose that is an offence or prohibited by law (penalty). The payment of interest after 3 months loses its compensatory character and assumes the character of a penalty. The Ld. DR further relied on the definition of "interest" under Section 2(28A) of the Income Tax Act, 1961. It was argued that the definition of interest implies "interest payable in any manner in respect of any moneys borrowed or debt incurred". A statutory levy that doubles in rate due to the infraction of the law does not fit the definition of simple 'interest' on debt incurred, but is a statutory penalty. The Ld. DR argued that the ratio of Mahalakshmi Sugar Mills applies to simple compensatory interest. It does not cover situations where the statute itself imposes a higher, punitive rate for continued default. The AO failed to examine this bifurcation and allowed the entire amount, rendering the order erroneous.

Before we deal with the issue, specific important points need to be brought on record. The VAT demand raised upon the assessee relates back to the assessment year 2014-15, and the AO (VAT) has mentioned the amount payable at Rs.2,37,24,428/- and the interest u/s 14(6) as Rs.1,75,44,466/- vide its order dated 15.3.2018. Thereafter, the assessee preferred the appeal before the VAT Commissioner. The VAT appeal of the assessee was adjudicated on 13.11.2019. As noted down in the question raised by the AO, the AO has asked the assessee to give the details of the tax expenses pertaining to Rs.4,35,36,478/-, however, in the entire submission submitted by the assessee before the AO does not show that the amount of Rs.4,35,76,478/- consists of the interest u/s 14(6) to the tune of Rs.1,75,44,466/-. In our considered opinion, when the AO is requiring the assessee to provide for the split and details of the taxes paid, then it is the duty of the assessee to provide the details as to whether the whole of the amount is tax or the amount consists of tax and interest u/s 14(6) of the Act or not.

In the present case, neither the assessee provided the information nor the AO examined that despite raising the question thus has not made adequate and sufficient enquiry to find out whether the amount of Rs.4,23,71,541/- consists of the interest u/s 14(6) of the VAT Act or not.

In our considered opinion, there is a duty of the AO to examine the complete fact and failure of the AO to examine fully would necessary amounts to non- examination or inadequate examination of facts or law. Therefore the order passed by the Assessing Officer would be not only erroneous but also prejudicial to the interests of the Revenue.

Undoubtedly u/s 14(3)(b) of the VAT Act, taxes include the normal interest rate, however, the question is whether the penal interest as contemplated u/s 14(6) of the VAT Tax can be said to be the interest which will partake the character of the taxes or not. In our considered opinion, whenever there is a higher or accelerated rate of tax provided beyond the period of three months, then the interest would take the character of the penalty and cannot be said to be simple interest. In view of the above, the higher rate of interest under section 14(6) would be penal in nature and will not be considered as tax within the meaning of law.

We find substantial force in the arguments of the Ld. DR. The AO, during the assessment proceedings, accepted the claim of interest on VAT without examining the underlying provisions of the Haryana VAT Act. As pointed out by the Ld. DR, the levy of interest @ 3% per month after the initial three months clearly suggests a penal interest rather than a mere compensatory one. The decision of the Hon'ble Supreme Court in Mahalakshmi Sugar Mills laid down that interest paid to compensate the revenue for the delay is allowable. However, it is a settled principle that if a levy is composite (partly compensatory and partly penal), the penal component is not permissible and would not constitute part of tax. We are of the opinion that where the quantum of impost is substantially higher than commercial rates or escalates to punish the defaulter, it partakes the character of a penalty. By failing to verify the break-up of the interest payment and by failing to segregate the penal portion (the 3% tier) from the compensatory portion, the AO has committed an error. The AO simply accepted the nomenclature of "interest" without applying his mind to the definition u/s 2(28A) or the Explanation to Section 37(1).

In light of the specific provisions of the Haryana VAT Act providing for a penal rate of 3%, the PCIT was justified in holding that the order was erroneous and prejudicial to the interest of the revenue. The AO is directed to examine the matter afresh in light of these observations.

Nothing stated hereinabove shall be construed as an expression on the merits of the case. The discussion undertaken by us is confined solely to the limited issue of whether the order passed by the Assessing Officer was erroneous and prejudicial to the interests of the Revenue within the meaning of section 263 of the Act. Having upheld the order passed by the learned PCIT, we direct the Assessing Officer to examine and decide the issue afresh, strictly in accordance with law, without being influenced by any of the observations made hereinabove.

In the result, the appeal filed by the assessee is dismissed. Order pronounced in the open Court on 29/12/2025 कृणवन्त सहाय (KRINWANT SAHAY) लेखासदस्य / ACCOUNTANT MEMBER ललित कुमार (LALIET KUMAR) न्यायिक सदस्य/JUDICIAL MEMBER AG आदेशकीप्रतिलिपि अग्रेषित/